Citation Nr: 1213531
Decision Date: 04/13/12 Archive Date: 04/26/12
DOCKET NO. 08-08 063 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Portland, Oregon
THE ISSUES
1. Whether new and material evidence has been received to reopen the previously denied claim of service connection for mononucleosis.
2. Whether new and material evidence has been received to reopen the previously denied claim of service connection for a cervical spine disorder, claimed as broken neck.
3. Whether new and material evidence has been received to reopen the previously denied claim of service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD).
4. Whether new and material evidence has been received to reopen the previously denied claim of service connection for asthma.
5. Whether new and material evidence has been received to reopen the previously denied claim of service connection for a skin disorder claimed as burns and scalding burn residuals.
6. Whether new and material evidence has been received to reopen the previously denied claim of service connection for hepatitis.
REPRESENTATION
Veteran represented by: Veterans of Foreign Wars of the United States
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
C. Bosely, Associate Counsel
INTRODUCTION
The Veteran had active service from June 1973 to June 1975.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from November 2005 and April 2008 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon.
The Veteran testified before the undersigned at a March 2011 Board hearing. A transcript of the hearing has been associated with the claims file.
During and after the Board hearing, the Veteran submitted additional evidence in support of his appeal. Because he waived initial RO jurisdiction over this evidence, the Board has accepted it for inclusion into the record on appeal. See 38 C.F.R. §§ 20.800; 20.1304 (2011).
The issues of service connection (on the merits) for (1) a cervical spine disorder, claimed as broken neck; (2) a psychiatric disorder, to include PTSD; (3) asthma; (4) a skin disorder claimed as burns and scalding burn residuals; and (5) hepatitis are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ) via the Appeals Management Center (AMC), in Washington, DC.
FINDINGS OF FACT
1. In March 2011, prior to the promulgation of a decision in the appeal, the Veteran notified the Board that he wished to withdraw his appeal on the issue of whether new and material evidence has been received to reopen the previously denied claim of service connection for mononucleosis.
2. An original claim of service connection for hepatitis and claimed burn residuals, which was filed in May 1976, is deemed abandoned.
3. The RO denied the Veteran's August 1993 claims of service connection for a neck disorder, a psychiatric disorder (claimed as "mental anguish"), asthma, hepatitis and "scalding and burns" in a July 1994 rating decision; he was notified in writing of this decision and of his appellate rights by an August 1994 letter, but he did not file a Notice of Disagreement (NOD) regarding the claims of service connection for a neck disorder, a psychiatric disorder, hepatitis, or scalding and burns.
4. After filing a timely NOD regarding asthma, the RO issued a Statement of the Case (SOC) in May 1995, but the Veteran did not then file a timely Substantive Appeal.
5. New and material evidence was not received within one year of the January 1977 rating decision or prior to the expiration of the appeal period following the July 1994 rating decision (and May 1995 SOC).
6. In March 2008, VA received relevant official service treatment records that existed and had not previously been associated with the claims file.
CONCLUSIONS OF LAW
1. The criteria for withdrawal of an appeal by the Veteran on the issue of whether new and material evidence has been received to reopen the previously denied claim of service connection for mononucleosis have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2011).
2. The January 1977 and July 1994 rating decisions are final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.158, 20.200, 20.201, 20.302, 20.1103 (2011).
3. Because evidence received since the July 1994 rating decision is new and material, the claim of service connection for a cervical spine disorder, claimed as broken neck, is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2011).
4. Because evidence received since the July 1994 rating decision is new and material, the claim of service connection for a psychiatric disorder, to include PTSD, is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2011).
5. Because evidence received since the July 1994 rating decision is new and material, the claim of service connection for asthma is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2011).
6. Because evidence received since the July 1994 rating decision is new and material, the claim of service connection for a skin disorder claimed as burns and scalding burn residuals is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2011).
7. Because evidence received since the July 1994 rating decision is new and material, the claim of service connection for hepatitis is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2011).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Withdrawal
The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2002). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2011). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204 (2011).
In the present case, the Veteran, on the record at his March 2011 Board hearing, withdrew his appeal on the issue of service connection for mononucleosis. Board Hearing Tr. at 2. Hence, there remain no allegations of errors of fact or law for appellate consideration on that issue. Accordingly, the Board does not have jurisdiction to review the appeal on that issue, and it is dismissed.
II. Duties to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011). In claims to reopen, VA must both notify a claimant of the evidence and information necessary to reopen the claim, as well as the evidence and information required to establish entitlement to the underlying claim for the benefit that is being sought. Kent v. Nicholson, 20 Vet. App. 1 (2006).
Here, the disposition below is fully favorable to the Veteran in that the Board is reopening the previously-denied service-connection claims remaining on appeal (other than the claim regarding mononucleosis, which is dismissed). Therefore, the Board finds that all notification and development action necessary to render a fair decision in this matter has been completed. Additional discussion of VA's compliance with the duty to notify and assist provisions of the VCAA will be accomplished should this appeal be returned to the Board following the remand actions outlined below.
III. Analysis
The Veteran contends that his claims of service connection for (1) a cervical spine disorder, claimed as broken neck; (2) a psychiatric disorder, to include PTSD; (3) asthma; (4) a skin disorder claimed as burns and scalding burn residuals; and (5) hepatitis, should be reopened and adjudicated on the merits.
By way of history, the claims file shows that the Veteran submitted an original claim of service connection in May 1976 for several disorders, including, pertinent to this appeal, burns and hepatitis. In January 1977, the RO sent him a letter informing him that his claims had been denied because he did not report for VA examinations scheduled in connection with the claims.
Next, he filed a new claim in August 1993, which included an original claim of service connection for a neck disorder, a psychiatric disorder (claimed as "mental anguish"), asthma, and claims of service connection for hepatitis and "scalding and burns." The RO denied the claims in a July 1994 rating decision.
A claimant is entitled to notice of any decision by VA affecting the payment of benefits or the granting of relief, and such notice must inform a claimant of the right to initiate an appeal by filing a Notice of Disagreement (NOD). 38 C.F.R. § 3.103(f) (2011). An appeal consists of a timely filed NOD in writing and, after an SOC has been furnished, a timely filed Substantive Appeal. 38 C.F.R. § 20.200 (2011).
Thus, a claimant may initiate an appeal from a VA decision by the timely filing of an NOD in writing. 38 C.F.R. § 20.200 (2011); see also Percy v. Shinseki, 23 Vet. App. 37, 45 (2009). An NOD is a written communication from a claimant or from his or her representative expressing (1) dissatisfaction or disagreement with an adjudicative determination by the AOJ and (2) a desire to contest the result. While special wording is not required, the NOD must be in terms that can be reasonably construed as disagreement with that determination and a desire for appellate review. 38 C.F.R. § 20.201 (2011). An NOD must be filed within one year from the date the RO mailed notice of the rating decision. Otherwise, that determination becomes final. See 38 C.F.R. § 20.302(a) (2011).
A timely filed NOD places the issue(s) into appellate status, which requires the issuance of a SOC. See 38 C.F.R. § 19.26 (2011); see also, Percy v. Shinseki, 23 Vet. App. 37, 45 (2009). A Substantive Appeal must be filed within 60 days from the date the RO mailed a claimant the SOC (or within the remainder of the one-year period from the date of mailing of the rating decision being appealed, whichever period ends later). 38 C.F.R. §§ 20.200, 20.300, 20.302 (2011). Otherwise, the rating decision becomes final. See 38 C.F.R. § 20.1103 (2011).
However, the filing of an untimely Substantive Appeal, as opposed to an NOD, is not necessarily a bar to the Board's jurisdiction. Therefore, the Board can implicitly or explicitly waive the issue of timeliness with regard to a Substantive Appeal. Nonetheless, the Board may decline to exercise jurisdiction over an appeal, if a Substantive Appeal was not timely filed. See Percy v. Shinseki, 23 Vet. App. 37, 45 (2009).
Furthermore, where evidence requested in connection with an original claim is not furnished within one year after the date of request, the claim will be considered abandoned. See 38 C.F.R. § 3.158 (2011). After the expiration of one year, further action will not be taken unless a new claim is received. See 38 C.F.R. § 3.158 (2011); see also Morris v. Derwinski, 1 Vet. App. 260, 264 (1991) (claimants "have a responsibility to cooperate with the agency in the gathering of the evidence necessary to establish allowance of benefits," so if "VA notifies a claimant of the need for further evidence and the claimant fails to respond within one year of that notice, the claim is deemed to have been abandoned.").
All filings by a claimant must be construed based on a liberal reading. See Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009) (holding that "[i]n direct appeals, all filings must be read 'in a liberal manner' whether or not the veteran is represented"); see also 38 C.F.R. § 20.200 (2011).
Here, the Veteran was advised of the January 1977 rating decision in writing. Although the letter did not inform him of his appellate rights, the letter asked him to sign a statement informing VA of his willingness to report for a VA examination. The Veteran, however, did not respond to the RO's request. In fact, he submitted no correspondence within one year of the January 1977 rating decision. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.201, 20.302 (2011); see also, Robinson, 557 F.3d at 1361. Thus, the May 1976 claim was abandoned. See 38 C.F.R. § 3.158 (2011).
With regard to the July 1994 rating decision, the claims file shows that the Veteran was sent appropriate written notice of the RO's determination in August 1994, including with a cover letter and an attachment informing him of his appellate rights. The Veteran filed a timely NOD in October 1994 disagreeing with the RO's decision on the claim of service connection for asthma (and two other claims not pertinent to this appeal).
The Veteran did not express disagreement with the remaining issues adjudicated in the July 1994 rating decision. Thus, it became final as to the issues of service connection for a neck disorder, a psychiatric disorder (claimed as "mental anguish"), hepatitis, and "scalding and burns." See 38 C.F.R. §§ 20.200, 20.201 (2011).
Regarding the appeal of service connection for asthma, the RO issued an SOC in May 1995. A June 1995 cover letter informed the Veteran of his right to appeal that decision to the Board by filing a Substantive Appeal within 60 days. Thereafter, however, the Veteran filed no correspondence that may be construed, even upon a liberal reading, as a Substantive Appeal. To the contrary, the next correspondence received from the Veteran was in July 1999, and it concerned a claim unrelated to the instant appeal. Moreover, the RO did not treat the claims as if a Substantive Appeal had been timely filed. See Percy, 23 Vet. App. at 45.
Although a timely appeal is not filed, if new and material evidence is received during an applicable appellate period following a RO decision (1 year for a rating decision and 60 days for an SOC) or prior to an appellate (Board) decision (if an appeal was timely filed), the new and material evidence will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. See 38 C.F.R. § 3.156(b) (2011); Young v. Shinseki, 22 Vet. App. 461, 466 (2009).
Thus, if new and material evidence is received before an appeal period has expired, a rating decision does not become final, and any "subsequent decision based on such evidence relate[s] back to the original claim." Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2011). Consequently, "VA must evaluate submissions received during the relevant [appeal] period and determine whether they contain new evidence relevant to a pending claim, whether or not the relevant submission might otherwise support a new claim." Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011).
Here, the record shows that no new and material evidence was received within one year of the January 1977 decision or prior to the expiration of the appeal period following the July 1994 rating decision (or May 1995 SOC). Copies of the Veteran's DD Form 214 were added to the claims file in November 1978, but this evidence was not material to the claims as it merely demonstrates the conditions of the Veteran's service, which was not in dispute in January 1977. 38 C.F.R. § 3.156(b) (2011); see also 38 C.F.R. § 3.156(c) (2011).
In light of the foregoing, the Board finds that the January 1977 decision and the July 1994 rating decision became final. See 38 C.F.R. §§ 20.200, 20.1103 (2011).
The Board may only reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of the claimant. 38 U.S.C.A. §§ 5108, 7104(b) (West 2002); 38 C.F.R. § 3.156(a) (2011); see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998).
The Veteran filed the instant request to reopen the claims of service connection for asthma and a psychiatric disorder (claimed as PTSD, sleeping problems, and anxiety) in July 2005. He submitted a request to reopen the claim of service connection for burn residuals in January 2006, and he then filed the instant request to reopen the claims of service connection for neck fracture and hepatitis in March 2007.
Except as otherwise provided, if at any time following issuance of a decision VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided a prior claim, VA will reconsider the claim. See 38 C.F.R. §§ 3.156(c), 20.1000(b) (2011).
Otherwise, to reopen and review a claim that has been previously denied, new and material evidence must be submitted by or on behalf of a claimant. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2011); see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). "[T]he question of what constitutes material evidence to reopen a claim for service connection depends on the basis on which the prior claim was denied." Kent v. Nicholson, 20 Vet. App. 1, 10 (2006); see Bostain v. West, 11 Vet. App. 124, 127 (1998) (noting that the "last final disallowance" of a claim was the denial of a request to reopen).
Regarding requests to reopen filed on or after August 29, 2001, such as this one, the provisions of 38 C.F.R. § 3.156(a) define "new" evidence as evidence not previously submitted to agency decision makers and "material" evidence as evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. See 66 Fed. Reg. 45,620, 45,630 (Aug. 29, 2001). New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial of the claim(s) sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2011). New and material evidence is not required "as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110, 120 (2010).
The provisions of 38 U.S.C.A. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-3 (1996). For purposes of the "new and material" analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992).
Furthermore, the question of whether to reopen a claim should be considered under the standard of 38 C.F.R. § 3.159(c)(4)(iii), consistent with McLendon v. Nicholson, 20 Vet. App. 79 (2006), for determining whether a VA examination is necessary. If the McLendon standard is met, the claim should be reopened. See Shade, 24 Vet. App. at 110.
Here, the pertinent evidence associated with the claims file at the time of the July 1994 rating decision consisted of service treatment records from June 1973 to June 1975, VA examinations from 1994, and private medical records from a private physician for the period from 1988 through 1993.
Based on this record, the RO denied the claims in the July 1994 rating decision, for the following reasons. First, the RO denied the claimed "burns" based on a determination that the STRs showed no evidence of complaints or treatment for burns, and no related scarring was shown on the separation examination. The RO denied hepatitis based on a determination that although the Veteran reported a diagnosis during his separation examination, the STRs included no record of hospitalization for hepatitis, and there was no evidence of any residuals of hepatitis shown on the separation examination or on post-service VA examination. The RO denied the claimed "broken neck" based on a determination that the STRs showed no evidence of a broken neck or other chronic neck disability. The RO denied service connection for a "mental disorder," including PTSD, and polysubstance abuse, based on a determination that the STRs showed no evidence of a psychiatric disorder, including upon service separation; a VA psychiatric examination did not find PTSD; rather the diagnosis was polysubstance abuse, which was not a disability for which service connection could be granted. Finally, the RO denied service connection for asthma based on a determination that the STRs showed no treatment, and there was a history of asthma since childhood with no aggravation shown the STRs. The RO expressed the same determination regarding asthma in the May 1995 SOC.
The evidence associated with the claims file since the July 1994 rating decision (and May 1995 SOC) includes additional STRs and a copy of the Veteran's entire official military personnel file. This evidence constitutes official service treatment records that existed and had not previously been associated with the claims file. Moreover, the records, particularly the STRs, bear on the issues on appeal, as they show relevant treatment throughout service.
Accordingly, the Veteran's claims must be reopened for reconsideration. 38 C.F.R. § 3.156(c) (2011). To this extent only, the appeal is granted.
ORDER
The appeal is dismissed on the issue of whether new and material evidence has been received to reopen the previously denied claim of service connection for mononucleosis.
As new and material evidence has been received, the claim of service connection for a cervical spine disorder, claimed as broken neck, is reopened, and the appeal to this extent is allowed.
As new and material evidence has been received, the claim of service connection for a psychiatric disorder, to include PTSD, is reopened, and the appeal to this extent is allowed.
As new and material evidence has been received, the claim of service connection for asthma is reopened, and the appeal to this extent is allowed.
As new and material evidence has been received, the claim of service connection for a skin disorder, claimed as burns and scalding burn residuals, is reopened, and the appeal to this extent is allowed.
As new and material evidence has been received, the claim of service connection for hepatitis is reopened, and the appeal to this extent is allowed.
REMAND
After careful consideration, the Board finds that further development is necessary on the reopened claims of service connection for (1) for a cervical spine disorder, claimed as broken neck; (2) a psychiatric disorder, to include PTSD; (3) asthma; (4) a skin disorder claimed as burns and scalding burn residuals; and (5) hepatitis.
As an initial matter, the Board notes that the claim of service connection for a psychiatric disorder is found to reasonably encompass any psychiatric disorder, including, but not limited to, PTSD. Such a broad characterization of the claim is consistent with the Veteran's own assertions, the medical records, and the development and adjudication of the claim. See Clemons v. Shinseki, 23 Vet. App. 1 (2009); Brokowski v. Shinseki, 23 Vet. App. 79, 86-88 (2009).
With regard to the first reason for remand, the Board finds that there are outstanding medical records that must be obtained, as follows.
The Veteran testified at his March 2011 Board hearing that he had received treatment from VA as early as the late 1980s or early 1990s. At present, the claims file includes VA treatment records beginning from 1995. The claims file also includes VA examination reports from 1994. It is unclear from the record, in light of the Veteran's imprecise recollection, whether there may be further treatment records outstanding prior to those presently associated with the claims file.
Furthermore, the Veteran testified at the March 2011 Board hearing that he had ongoing private treatment, including for his neck and claimed burn residuals.
Finally, the evidence of record includes private dental records from June 1991 showing that the Veteran was involved in a Workers' Compensation claim. These dental records indicate that the Workers' Compensation records may be pertinent in this matter.
Thus, upon remand, the AOJ should attempt to obtain all outstanding evidence identified in the claims file. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2011).
Remand is also necessary to afford the Veteran appropriate VA examinations to address the medical questions raised in this appeal.
Regarding the claimed cervical spine disorder, the Veteran contends that he injured his neck during service. The STRs show complaints in July 1973 for stiff neck, but not in the context of an injury as described by the Veteran. Moreover, the post-service medical records show complaints of neck pain associated with two post-service injuries (a workplace injury in 1987 and a motor vehicle accident (MVA) in 1993). More recently, however, a private chiropractor wrote in an April 2011 letter that it was his opinion that the Veteran had a current cervical spine disorder that had "been degenerating since his military injury." This evidence indicates that a current cervical spine disorder may be related to the Veteran's active duty service. Accordingly, a VA examination is necessary.
Regarding the claimed asthma, the Veteran's STRs show that he endorsed a history of childhood asthma upon entrance into service in June 1973. However, clinical evaluation was normal on service entrance. STRs thereafter show treatment for asthma on various occasions. On remand, an opinion should be obtained regarding whether the Veteran's current asthma, if present, is related to the asthma symptoms he experienced during service. See generally Holton v. Shinseki, 557 F.3d 1362 (Fed. Cir. 2009) (noting that the "presumption of soundness . . . does not relieve the veteran of the obligation to show the presence of a current disability and to demonstrate a nexus between that disability and the in-service injury or disease")
Regarding the claimed psychiatric disorder, skin disorder, and hepatitis, the Veteran's STRs show pertinent treatment. A VA examination is necessary to determine whether it is at least as likely as not that the Veteran has a current disability related to these events and circumstances of his service.
In short, the evidence of record indicates that the claimed disorders may be related to the Veteran's active duty service. Accordingly, VA examinations are necessary on each claim. See 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4)(i) (2011); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006).
Accordingly, the case is REMANDED for the following action:
1. Send the Veteran a letter requesting that he provide the names, addresses, and approximate dates of treatment for all private (non-VA) health care providers who may have additional records pertinent to the remanded claims.
The letter should also request that he identify any and all Workers' Compensation claims he has submitted to any state or local agency since his separation from service.
2. After the Veteran has signed any necessary releases, make as many attempts as necessary to obtain all pertinent records identified by the Veteran, if not already associated with the claims file.
The AOJ should also obtain all of the Veteran's outstanding VA treatment records, including those prior to August 1995, if any.
The AOJ should also contact any identified Workers' Compensation office(s) and request copies of the Veteran's records regarding Workers' Compensation benefits, including any Workers' Compensation administrative decisions (favorable or unfavorable) and the medical records upon which the decisions were based.
All records obtained must be associated with the claims file. Further, all attempts to procure any identified records must be documented in the claims file and, if any records cannot be obtained, a notation to that effect should be inserted in the file. The Veteran is to be notified of any unsuccessful efforts in order to allow him the opportunity to obtain and submit those records for VA review.
3. After completing the development outlined in items 1 and 2, schedule the Veteran for an examination to determine the nature and etiology of his claimed cervical spine disability. The claims file should be made available to and be reviewed by the examiner in conjunction with the examination. The examiner is asked to provide an opinion on the following question:
Is it at least as likely as not (i.e., there is at least a 50 percent probability) that the Veteran has a cervical spine disability that had its onset during service, became manifest within a one-year period following his discharge from service, or is otherwise causally related to any event or circumstance of his active service?
In making this determination, the examiner's attention is directed to the Veteran's in-service complaints of a stiff neck in 1973. The examiner's attention is also directed to pertinent post-service medical records, as noted above, including treatment for injuries (a workplace injury in 1987 and a motor vehicle accident (MVA) in 1993), and a private chiropractor's April 2011 letter favorably relating a current neck disorder to the Veteran's service.
A report of the examination should be prepared and associated with the Veteran's VA claims file. A complete rationale must be provided for all opinions rendered. If the examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation.
4. After completing the development outlined in items 1 and 2, schedule the Veteran for an examination to determine the nature and etiology of his claimed psychiatric disability, to include PTSD. The claims file should be made available to and be reviewed by the examiner in conjunction with the examination. After conducting an examination of the Veteran and performing any clinically-indicated diagnostic testing, the examiner is asked to provide an opinion on the following questions:
(a.) Does the Veteran have PTSD?
(b.) If the Veteran is diagnosed with PTSD, is it at least as likely as not (i.e., there is at least a 50 percent probability) that the Veteran's PTSD is related to an in-service stressor, to include his in-service burn injury?
(c.) Does the Veteran have a psychiatric disability other than PTSD?
(d.) If a psychiatric disability other than PTSD is identified, is it at least as likely as not (i.e., there is at least a 50 percent probability) that such disability was incurred during the Veteran's active service or is otherwise causally related to his active service, to include his in-service burn injury?
For the purposes of this remand, the examiner should accept as true that the Veteran suffered a burn injury during service.
A report of the examination should be prepared and associated with the Veteran's VA claims file. A complete rationale must be provided for all opinions rendered. If the examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation.
5. After completing the development outlined in items 1 and 2, schedule the Veteran for an examination to determine the nature and etiology of his claimed asthma. The claims file should be made available to and be reviewed by the examiner in conjunction with the examination. After conducting an examination of the Veteran and performing any clinically-indicated diagnostic testing, the examiner should render an opinion as to whether it is at least as likely as not (i.e., there is at least a 50 percent probability) that the Veteran's current asthma is related to the asthma symptoms he experienced during service? In other words, is the Veteran's current asthma a continuation of the asthma he experienced during service?
For the purposes of answering this question, the examiner is directed to assume that the Veteran was in sound condition on service entrance (i.e., did not have asthma on service entrance).
A report of the examination should be prepared and associated with the Veteran's VA claims file. A complete rationale must be provided for all opinions rendered. If the examiner cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation.
6. After completing the development outlined in items 1 and 2, schedule the Veteran for an examination to determine the nature and etiology of his claimed skin disorder, claimed as burns and scalding burn residuals. The claims file should be made available to and be reviewed by the examiner in conjunction with the examination. After conducting an examination of the Veteran and performing any clinically-indicated diagnostic testing, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., there is at least a 50 percent probability) that the Veteran has current residuals, such as scars, due to burn injuries suffered during service.
In making this determination, the examiner's attention is directed to the service treatment records, including the June 1973 entrance examination, showing a surgical scar on the left clavicle area existing prior to the Veteran's entrance into active duty service. The examiner's attention is also directed to service treatment records from April 1974 showing treatment for second degree burns on the face and left shoulder and right abdomen.
A report of the examination should be prepared and associated with the Veteran's VA claims file. A complete rationale must be provided for all opinions rendered. If the examiner cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation.
7. After completing the development outlined in items 1 and 2, schedule the Veteran for an examination to determine the nature and etiology of his claimed hepatitis. The claims file should be made available to and be reviewed by the examiner in conjunction with the examination. After conducting an examination of the Veteran and performing any clinically-indicated diagnostic testing, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., there is at least a 50 percent probability) that the Veteran has current residuals of the hepatitis diagnosed during his active duty service.
A report of the examination should be prepared and associated with the Veteran's VA claims file. A complete rationale must be provided for all opinions rendered. If the examiner cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation.
8. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issues on appeal. If the benefits sought on appeal remain denied, in whole or in part, provide the Veteran and his representative with a Supplemental Statement of the Case and afford them a reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order.
The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010).
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DONNIE R. HACHEY
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs